In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4162

WILLIE EDWARDS, JR.,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division.

No. 2:98-CV-152-RL--Rudy Lozano, Judge. 

Submitted August 15, 2001/*--Decided September 24, 2001 

 Before Posner, Ripple, and Diane P. Wood,

Circuit Judges.

 Per Curiam. Some years ago, Willie

Edwards was charged and convicted on one

count of conspiring to distribute heroin

and cocaine, in violation of 21 U.S.C.

sec.sec. 846 and 841(a)(1), and another

count of using a telephone to facilitate

the distribution of heroin and cocaine,

in violation of 21 U.S.C. sec. 843(b). He

was sentenced to 324 months’ imprisonment

on the first count and, concurrently, 96

months on the second. This court affirmed

both the convictions and sentences on

direct appeal, in United States v.

Edwards, 115 F.3d 1322 (7th Cir. 1997).

Like many others before him, Edwards has

now filed a motion under 28 U.S.C. sec.

2255 seeking to obtain relief from his

sentence based on the Supreme Court’s

decision in Apprendi v. New Jersey, 530

U.S. 466 (2000). The district court

denied his motion, and we now affirm that

judgment.

 Before reaching the merits of Edwards’s

Apprendi argument, however, we must

address a preliminary question touching

this court’s jurisdiction. The district

court denied Edwards’s sec. 2255 motion

on July 29, 1999; it entered judgment on

the same day. On August 16, 1999, the

district court docketed a paper from

Edwards entitled "Motion Pursuant to Rule
59(e) and Request for Evidentiary Hearing

Pursuant to Rule 8(c) that Governs Habeas

Corpus and 28 U.S.C. sec. 2243." Edwards

had tendered this paper, with the correct

postage, to the prison authorities on

August 10, 1999. About two months later,

on October 14, 1999, the district court

denied the motion, and Edwards filed his

notice of appeal to this court on October

22, 1999. 

 The question is whether Edwards filed

that notice of appeal in a timely manner.

In general, because the United States is

a party to a sec. 2255 case, a petitioner

has 60 days in which to appeal. See Fed.

R. App. P. 4(a)(1)(B). Measuring that

time from the original judgment, however,

yields a time for appeal of September 27,

1999, well before Edwards’s actual filing

date of October 22, 1999. This means that

Edwards’s appeal was not timely unless

the time for filing was tolled by his

Motion Pursuant to Rule 59(e). Those

motions must be filed within 10 business

days of the district court’s order, see

Fed. R. Civ. P. 59(e), 6(a). The tenth

business day after July 29, 1999, was

August 12, 1999, two days after Edwards

tendered his motion to the prison

authorities and four days before the

district court received and docketed the

motion. If the motion was a timely Rule

59(e) filing, it served to toll the time

for taking an appeal until the district

court disposed of it. See, e.g., Life

Ins. Co. of N. Am. v. VonValtier, 116

F.3d 279, 282 (7th Cir. 1997). If it was

not timely for purposes of Rule 59(e),

then Edwards’s appeal must be dismissed

on jurisdictional grounds. (We note that

everyone from the district court to the

parties before us has assumed that the

motion was timely, but because the

question goes to our jurisdiction, we

must examine it independently.)

 In Houston v. Lack, 487 U.S. 266 (1988),

the Supreme Court decided that for

purposes of Fed. R. App. P. 4(a)(1), a

notice of appeal filed by a pro se

prisoner would be considered "filed" at

the moment of delivery to the prison

authorities, rather than at a later point

in time after the authorities had

forwarded the notice to the court and the

court had formally recorded its receipt.

Rule 4(c)(1) of the Appellate Rules now

reflects this holding. The question here

is whether this "mailbox rule" should
apply to a pro se prisoner’s filing of a

motion under Rule 59(e) as well.

 In 1999, this court extended Houston’s

mailbox rule to the filing of petitions

for a writ of habeas corpus, but it noted

in the same decision that "this circuit

has not ruled on whether the rule should

be extended to a pro se prisoner’s filing

of other papers." Jones v. Bertrand, 171

F.3d 499, 501 (7th Cir. 1999). In other

cases, such as Simmons v. Ghent, 970 F.2d

392, 393 (7th Cir. 1992), we assumed that

the mailbox rule applies to all prisoner

district court filings, including those

under Rule 59(e). This appears to be the

rule in every other circuit to have

considered the point. See In re Rashid,

210 F.3d 201, 204 (3d Cir. 2000) (per

curiam); Garrett v. United States, 195

F.3d 1032, 1034 (8th Cir. 1999);

Anyanwutaku v. Moore, 151 F.3d 1053, 1057

(D.C. Cir. 1998). The Sixth and the Tenth

Circuits have come to the same conclusion

in unpublished orders. See Tate v.

Hemingway, No. 00-1220, 2001 WL 345772,

at *1 (6th Cir. Mar. 27, 2001); Klein v.

McClaury, No. 00-1065, 2000 WL 1005238,

at *1 n.1 (10th Cir. July 20, 2000).

Finally, other circuits have applied the

mailbox rule to other kinds of filings in

the district court. See Cooper v.

Brookshire, 70 F.3d 377, 380 (5th Cir.

1995) (complaint); Caldwell v. Amend, 30

F.3d 1199, 1201 (9th Cir. 1994) (Rule

50(b) motion); Dory v. Ryan, 999 F.2d

679, 682 (2d Cir. 1993) (complaint);

Garvey v. Vaughn, 993 F.2d 776, 783 (11th

Cir. 1993) (complaint); Thompson v.

Raspberry, 993 F.2d 513, 515 (5th Cir.

1993) (per curiam) (objections to

magistrate judge’s report and recommenda

tion); Faile v. Upjohn Co., 988 F.2d 985,

988 (9th Cir. 1993) (discovery request);

Lewis v. Richmond City Police Dep’t, 947

F.2d 733, 736 (4th Cir. 1991) (per

curiam) (complaint). 

 The policy on which the Houston Court

relied--that is, that institutional

constraints prevent prisoners from

monitoring the delivery of a notice of

appeal after it has been entrusted to the

prison authorities--applies with equal

force to the filing of a motion under

Rule 59(e). We need not decide here

whether there is any kind of paper, or

any circumstance, under which a district

court would be entitled to hold a pro se

prisoner litigant to an actual receipt
standard, but we are confident that this

would be an exceptional situation. As the

Houston Court put it, the "pro se

prisoner [ ] cannot personally travel to

the courthouse to see that the notice is

stamped ’filed’ or to establish the date

on which the court received the notice."

487 U.S. at 271. We hold, therefore, that

the mailbox rule applies to motions filed

pursuant to Rule 59(e). This in turn

means that Edwards may proceed with his

appeal: he has certified to this court

that he deposited the motion in the

prison mailbox with the correct postage

on August 10, 1999, two days before the

August 12, 1999, deadline.

 Unfortunately for Edwards, this

procedural victory is not a harbinger of

success on the merits. On appeal, he has

abandoned the grounds for the sec. 2255

motion that he had presented to the

district court and has instead urged us

to find that Apprendi requires us to set

aside his conviction and sentence. This

court granted a certificate of

appealability on two issues: (1) whether

Edwards’s sentence of 324 months is

lawful in light of Apprendi, and (2)

whether Apprendi applies retroactively to

first-time motions under 28 U.S.C. sec.

2255, as opposed to second or successive

motions.

 Upon closer examination of the record,

we have concluded that neither one of

these questions is properly presented in

Edwards’s case. Even assuming that

Apprendi applies retroactively to cases

on collateral review, Edwards’s sentence

does not run afoul of its holding. It was

uncontested that Edwards had a prior

felony drug conviction. The government

filed an enhancement information under 21

U.S.C. sec. 851, and we have now made it

clear on a number of occasions that we do

not read Apprendi as having overruled

Almendarez-Torres v. United States, 523

U.S. 224 (1998), which held that

enhancements based on recidivism are

still sentencing factors, not elements of

the offense. See Dahler v. United States,

259 F.3d 763, 765-66 (7th Cir. 2001);

United States v. Brough, 243 F.3d 1078,

1081 (7th Cir. 2001). Given all this,

Edwards faced a statutory maximum prison

term of 30 years (360 months) under sec.

841(b)(1)(C), and his sentence of 324

months does not exceed that cap. See

United States v. Jones, 245 F.3d 645,
650-51 (7th Cir. 2001).

 We therefore AFFIRM the judgment of the

district court.

FOOTNOTES

/* After an examination of the briefs and the

record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the

briefs and the record. Fed. R. App. P. 34(a)(2).